Saturday, October 03, 2015

In East Texas Baptist University v. Burwell, (5th Cir., Sept. 30, 2015), the U.S. 5th Circuit Court of Appeals denied a panel rehearing and, by a vote of 4-11, denied an en banc rehearing in three related cases, all raising challenges to the Obama administration's accommodation for religious non-profits that object to the Affordable Care Act requirement that their health insurance policies cover contraceptive services. The 3-judge panel held that plaintiffs had not shown a substantial burden on their religious exercise. (See prior posting.) Judge Jones, joined by Judges Clement and Owen filed a dissent from the denial of the en banc rehearing, saying in part:

This case goes to the heart of religious liberty protected by the Religious Freedom Restoration Act (“RFRA”).... How ironic that this most consequential claim of religious free exercise, with literally millions of dollars in fines and immortal souls on the line, should be denied when nearly every other individual religious freedom claim has been upheld by this court. How tragic to see the humiliation of sincere religious practitioners, which, coming from the federal government and its courts, implicitly denigrates the orthodoxy to which their lives bear testament. And both ironic and tragic is the harm to the JudeoChristian heritage whose practitioners brought religious toleration to full fruition in this nation. Undermine this heritage, as our founders knew, and the props of morality and civic virtue will be destroyed.